Court No. - 9
Case :- SECOND APPEAL No. - 791 of 1990 Appellant :- Karrar Hussain & Others Respondent :- Abdul Hameed Counsel for Appellant :- R.K. Jain,Rahul Jain Counsel for Respondent :- S.K. Verma,Bipin Lal Srivastava,Phool Chandra Mishra,Siddharth Verma
Hon'ble Anjani Kumar Mishra,J.
Heard counsel for the parties.
This is a defendants' second appeal directed against the concurrent judgments of the two courts below decreeing the plaintiff-respondents suit for permanent injunction regarding land shown by the letters MFGJ in the plaint map.
This property, situated east of the plaintiff's house, was allegedly his sahan and the plaints house opens due east. It was also the plaint case that the defendant's house shown by letters EHGFF1 in the plaint map opens due north.
The two courts below on the basis of the evidence available on record found that the plaintiff had been able to prove his ownership and possession over the suit land. They accordingly decreed the suit and dismissed the consequential appeal.
Before this Court, the contention of counsel for the appellant is that the plaintiff never disclosed his source of title to the land in question. The categorical case of the defendant was that the land had been settled in their favour by the erstwhile zamindar and, therefore, it was settled with them in accordance with Section 9 of the U.P. Zamindari Abolition and Land Reforms Act on the abolition of zamindari. This aspect has not been considered by the courts below while decreeing the suit, which vitiates the impugned judgments. He has also placed reliance upon the decision of the Apex Court in Maharaj Singh Vs. State of U.P., 1976 AIR (SC) 2602 and Budhan Singh Vs. Babi Bux, 1970 AIR (SC) 1880 in support of his contention.
Counsel appearing for the plaintiff-defendant has supported the impugned order. He has submitted that the second appeal is concluded by concurrent findings of fact, which cannot be interfered with by this Court, while exercising second appellate jurisdiction.
I have considered the submissions made by counsel for the parties and perused the record.
It is not doubt true that the plea of the defendant was that the land had been obtained by them from the erstwhile zamindar. However, on a query by the Court as to the evidence in support of this plea, the only contention by counsel for the appellant is that his kachcha well and pumping set are in existence over the land in suit.
His contention regarding the well and pumping set has been specifically dealt with by the lower appellate Court and this plea has been negatived relying upon the statement of the defence witnesses, who have stated that the well and pumping set of the defendant-appellant is situated south of the land in suit and, therefore, not on the land in suit.
Since, no evidence regarding settlement of the land in suit in favour of the defendant-appellant could be pointed out during arguments, the judgments of the two courts below cannot be said to be perverse.
Concurrent findings of fact had been arrived at by the two courts below on the basis of the evidence available on record. In the absence of any perversity, these findings are not open for interference in exercise of second appellate jurisdiction.
Under the circumstances, the second appeal is found to be without merit. No substantial question of law arises for consideration therein.
It is accordingly, dismissed.
Order Date :- 26.4.2018 Mayank